Supplier Terms and Conditions

Terms of Purchase

United States
Canada

United States

A. ACCEPTANCE:

The order is an offer by the EJ Group entity named in the order ("Buyer") to purchase goods and/or services from Seller. Buyer's placement of the order with Seller is expressly conditioned upon Seller's acceptance of all of the terms and conditions of purchase contained herein.
In these Terms of Purchase, "Seller" means the seller named in the order, "goods" and "services" mean the goods or services that Buyer is to purchase from Seller, as described in the order, "Contract" means any contract formed pursuant to the order (and includes any accepted order and these Terms of Purchase), and "order" means any purchase order, supply agreement, statement of work, or other similar document issued by or on behalf of Buyer related to Seller’s supply to Buyer, and Buyer’s purchase from Seller, of goods and/or services, each as amended, restated, supplemented or otherwise modified from time to time in accordance with these Terms of Purchase.
The Contract includes the terms of any written agreement between Buyer and Seller. If for any reason, however, no such written agreement applies to Buyer's purchase from Seller under the order, then: (1) the order is an offer to buy the goods and/or services described therein by Buyer, and Buyer rejects any earlier offers to sell such goods and/or services made by Seller; (2) if the order nevertheless is in legal effect an acceptance of an earlier offer by Seller, then Buyer's acceptance of such offer is conditional upon Seller's assent to all of these Terms of Purchase, provided that any additional or different terms specifically accepted in writing by Buyer’s Procurement Department will be incorporated as part of the Contract; and (3) by signing and returning a copy of the order or by accepting the order electronically or by commencing performance of the subject matter of the Contract, except as may be otherwise specified in a Contract, Seller accepts, and agrees and assents to, all of these Terms of Purchase as part of the Contract. Notwithstanding the foregoing, if both Buyer and Seller have signed a separate contract that specifies the terms that will apply to Seller's sales of goods and/or services to Buyer and Buyer's purchases of such goods and/or services from Seller ("Special Contract") and if there is ever a direct conflict between a provision of the Special Contract and these Terms of Purchase, then the provision of the Special Contract shall control.
Any additional or different terms or conditions which may appear in any communication or document issued by Seller are hereby expressly rejected by Buyer and shall not be effective or binding, or become part of the Contract, except to the extent, if any, specifically accepted in writing by Buyer's Procurement Department.
Any objection by Seller to these Terms of Purchase shall be ineffective unless made and delivered by Seller in writing, so as to be received by Buyer, by not later than the earlier to occur of (1) Seller’s commencement of work under the Contract and (2) 10 days following the date of the order.

B. IDENTIFICATION: All invoices, packages, shipping notices, instruction manuals and other written documents affecting the Contract shall contain the applicable purchase order number. Packing lists shall be enclosed in each box or package shipped pursuant to the Contract, indicating the contents therein. Invoices will not be processed for payment until all items required by this Paragraph B are received.

C. SHIPPING INSTRUCTIONS: All goods are to be shipped freight prepaid, F.O.B. Buyer’s destination, unless otherwise stated on the order. At Buyer’s option and when Buyer has so authorized in advance and in writing, goods may be shipped F.O.B. shipping point, but in such cases Seller shall prepay all shipping charges, including insurance charges, and route the goods by (1) the lowest cost common carrier, (2) as set forth in the order, or (3) the carrier specified by Buyer, and list said charges as a separate item on Seller's invoice. Buyer reserves the right to reject C.O.D./C.I.A. shipments.

D. SPECIAL CHARGES: Seller shall be responsible for the payment of all charges for handling, packaging, wrapping, bags, containers and related matters unless Buyer has assumed an express obligation therefore by notation on the order.

E. DELIVERY: Time is of the essence, and the Contract may be terminated by Buyer if delivery is not made or services are not performed by the date specified in the Contract. No changes in the scheduled delivery date or performance will be permitted without Buyer's prior written consent. No acceptance of goods or services after the scheduled delivery date will waive Buyer's rights with respect to such late delivery nor shall it be deemed a waiver of future compliance with the terms hereof (or otherwise establish a course of dealing or course of performance by the parties). If Seller delivers more goods than Buyer ordered, then, at Buyer’s option, Buyer may reject the excess volume and Seller shall be responsible for all costs and expenses of storage and return of the rejected goods. Unless Buyer agrees otherwise in writing or otherwise set forth in the Contract, Seller shall deliver all of the goods in a single delivery and not in installments. Buyer's acceptance of a delivery that contains less than the required quantity shall not relieve Seller of its obligation to deliver the balance of the ordered goods at the price and on the other terms that the Contract specifies. If Seller delivers the goods before the scheduled delivery date, then Buyer may, at Seller's expense and risk, either store them or return them to Seller. Buyer's acceptance of an early delivery shall not extend the payment terms.

F. PAYMENT: Buyer will remit payment to Seller by electronic funds transfer or by such other commercially reasonable means as Seller and Buyer may agree in writing. Seller agrees not to deliver goods on a sight draft basis. Buyer’s payment does not constitute Buyer’s acceptance of the goods or limit or impair Buyer’s right to assert any legal or equitable remedy, or relieve Seller of its responsibility for latent defects. If Buyer pays any part of the purchase price of the goods before Seller delivers them to Buyer, then (1) title (but not risk of loss) to each item of the goods shall pass to Buyer upon identification of the item to the Contract, (2) Seller grants Buyer a security interest in the goods to secure Seller's obligation to deliver them to Buyer and all of Seller's other present and future obligations to Buyer, and (3) Seller shall obtain from each person that holds a security interest in or lien upon the goods a written agreement releasing that security interest or lien or subordinating it to Buyer's interest in the goods. Seller grants to Buyer a limited and irrevocable power of attorney, coupled with an interest, to execute and record on Seller’s behalf any documents, including an informational form UCC-1, with respect to the goods subject to Buyer’s security interest as Buyer determines is reasonably necessary to protect its interests in such goods. In addition to any right of setoff or recoupment provided by law, all amounts due to Seller will be considered net of indebtedness of Seller and its affiliates/subsidiaries to Buyer and its affiliates/subsidiaries; and Buyer will have the right to setoff against or to recoup from any amounts due to Seller and its affiliates/subsidiaries from Buyer and its affiliates/subsidiaries.

G. PRICES: If a price is not stated on the order, it is agreed that the goods or services shall be billed at the price last quoted, or paid by the customer of Seller, or the prevailing market price, whichever is lower. Except as otherwise set forth herein, Seller is responsible for all transportation costs (including, without limitation, packaging, loading, unloading and insurance costs), duties, taxes, charges and fees related to any goods and such costs are included in the purchase price in the order. The price for the goods, as stated in the order, is fixed and, except as otherwise may be expressly set forth in the Contract, is not subject to adjustment for any reason, including, without limitation, inflation, changes in the cost or availability of raw materials or components, labor costs, logistics costs, overhead costs, market fluctuations, or foreign currency exchange rate fluctuations.

H. CASH DISCOUNT: If Buyer is entitled to a cash discount, the period of computation thereof will commence on the date of acceptance or receipt of a correctly completed invoice, whichever is later. If an adjustment in payment is necessary due to damage, the cash discount period shall commence on the date on which an agreement between Buyer and Seller regarding an adjustment of price is reached. If a cash discount is made part of the contract, but the invoice does not reflect such discount, Buyer is entitled to a cash discount with the period commencing on the date Buyer determines that a cash discount applies.

I. TAXES: Seller shall pay and indemnify and hold Buyer harmless with respect to all taxes that may arise out of its sale of the goods and services to Buyer including, but not limited to, all sales and use taxes.

J. ASSIGNMENT: Seller shall not assign or transfer, directly or indirectly, the Contract or the right to payment due hereunder, without Buyer's prior written consent.

K. LIENS, CLAIMS, AND ENCUMBRANCES: Seller warrants and represents that all the goods will, when delivered hereunder, be free and clear of all liens, claims, security interests, and other encumbrances of any kind. Title to the goods will transfer to Buyer free and clear of any liens, claims, security interests, and other encumbrances and rights at the moment the risk of loss transfers from Seller to Buyer with respect to such goods in accordance with the applicable Incoterm or alternative delivery term set forth in the Contract. Upon Buyer’s request, Seller and any agent or subcontractor will deliver to Buyer contemporaneously with any payment or application for payment, recordable unconditional waivers of lien for any payments previously received, and a recordable, statutory unconditional full waiver of lien for the final payment. If any lien is filed or recorded in violation of this Paragraph K, Seller will remove the lien, at its expense, within 10 business days of the filing or recording of the lien.

L. REJECTION: All services provided or goods purchased hereunder are subject to Buyer's approval. Buyer has no duty to perform incoming inspections of the goods and Seller waives any requirement that Buyer conduct such inspections. Goods rejected by Buyer for any reason shall be held, transported and/or stored at Seller's sole expense. Seller shall promptly reimburse Buyer for any such expenses.

M. DEFAULT: Buyer may, subject to the provisions of Paragraph N, by written notice of default and without liability to Seller, terminate the whole or any part of the Contract or exercise any other remedy provided to buyers of goods by law or in equity including any remedy under the Uniform Commercial Code, in any of the following circumstances:

Seller fails to make delivery of the goods or to perform the services within the time specified in the Contract, including any extension thereof;
In Buyer's good faith judgment, Seller fails to perform any of the other provisions of the Contract or fails to make progress so as to endanger performance of the Contract in accordance with its terms and does not cure such failure within a period of ten days, or such longer period as Buyer may authorize in writing, after receipt of notice from Buyer specifying such failure;
Seller breaches or repudiates of any of the terms or conditions of the Contract, including, but not limited to, these Terms of Purchase;
Seller conducts a sale of a material portion of its business or a change of control that directly or indirectly impacts the manufacturing or supply of the goods without having first obtained Buyer’s prior written consent;
Seller fails to provide adequate assurance of due performance of any Contract within 10 days following receipt of Buyer’s demand for such assurance; or
Seller becomes insolvent or makes an assignment for the benefit of creditors, or if there shall be instituted by or against Seller any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt or insolvency law of any jurisdiction or for the appointment of a receiver or trustee in respect to any of Seller's property.

N. REMEDIES: The remedies of the parties include, without limitation:

Without limiting other rights and remedies available to it, Buyer may, at its option, (a) return nonconforming goods to Seller, at Seller's risk and expense, and require Seller either to give Buyer full credit against the price or promptly to repair or replace the goods at Seller's risk and expense, (b) retain nonconforming goods and set off losses against any amount that Buyer owes Seller or (c) repair or replace nonconforming goods and charge Seller with the expense.
If at any time (a) Seller defaults in the performance of any of Seller's obligations to Buyer under the Contract or under any other agreement between Seller and Buyer, (b) Seller repudiates the Contract, or (c) a warranty or representation that Seller made to Buyer in or in connection with the Contract is false or misleading in a material respect, then Buyer may terminate the Contract, in whole or part, without liability to Seller, and Seller shall promptly pay to Buyer all direct and indirect damages incurred by Buyer relating to or arising from the event or occurrence leading to such termination and the termination itself. In addition, Buyer may procure upon such terms and in such manner as Buyer may deem appropriate replacement goods or services similar to those cancelled and Seller shall be liable to Buyer for any excess costs incurred by Buyer, provided that, at Buyer’s option, Seller shall continue the performance of the Contract to the extent not cancelled in accordance with the Contract.
If Buyer does terminate the Contract due to Seller’s default, then at Buyer’s option, Seller shall immediately deliver to Buyer all finished and unfinished goods and all work-in-process and raw materials that Seller manufactured or procured in anticipation of and/or in connection with its performance of the Contract and all designs, drawings, specifications and software that Buyer is purchasing or is licensed to Buyer under the Contract, including all work-in-process, all source, object and pseudo codes, all preexisting programs intended to be incorporated in the software and all intellectual property rights in the foregoing. Buyer's payment of part or all of the purchase price shall not be a precondition to Seller's obligation to make the delivery of such items. After Seller has made the delivery and Buyer has determined its damages due to Seller’s default (including, without limitation, any cost of "cover" or of completing the manufacture or processing of the goods), then Buyer will pay to Seller any excess of (1) any unpaid part of the purchase price properly allocable to any conforming goods, work-in-process and raw materials that Seller delivered to Buyer over (2) Buyer's damages.
The rights and remedies of Buyer provided in this Paragraph N shall not be exclusive and are in addition to any other rights and remedies provided by law or under the Contract.
The failure of Buyer to insist upon strict performance of any terms of the Contract to exercise any rights hereunder shall not be construed as a waiver of Buyer's rights.
Any delay or failure of either party to perform its obligations under the Contract will be excused to the extent that, respectively, Seller is unable to manufacture, procure, sell or deliver, or Buyer is unable to pay for, accept delivery of, buy or use, the goods or services covered by the Contract, directly as the result of an event or occurrence beyond the reasonable control of such party, without such party’s fault or negligence provided that the affected party notifies the other party within 10 days of discovery of any of the below-mentioned events:
1. Events beyond the control of a party which give rise to the excused party's failure to perform, including, without limitation, acts of God, public enemy, or any governmental authority (whether valid or invalid), or fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather.
2. Default of a supplier or subcontractor, if such default gives rise to Seller's failure to perform and arises out of causes beyond the control of both Seller and the supplier or subcontractor, without the fault or negligence of either of them, and Seller makes a concerted effort to obtain replacement supplies or services in time to meet the requirements of the order.
Credits and/or adjustments not received within 60 days following the return of material or verbal agreement will be deducted by Buyer from any subsequent invoice or invoices or billed to the shipper at the agreed amount including any shipping and handling charges.
Seller's remedies for any alleged breach by Buyer are limited to those provided by the Uniform Commercial Code. Seller shall not be entitled, and waives any right of Seller, to recover any incidental or consequential damages, as those terms are defined in the Uniform Commercial Code.
If a material part of Buyer's business in which the goods and/or services are to be employed is shut down, permanently or temporarily, due to any event or occurrence outside of the reasonable control of Buyer (such as, without limitation, cancellation of a key contract, casualty or labor problems), Buyer may cancel the Contract without liability to Seller; provided that Buyer shall pay Seller the Contract price for conforming finished goods delivered to Buyer and/or conforming services performed by Seller, in each case prior to such cancellation.
Buyer's termination under this Paragraph N shall terminate only Seller's obligation and right to deliver goods or provide services other than as this Paragraph N requires and shall not terminate or impair Seller's other obligations, or any of Buyer's rights, under the Contract. In addition the Parties shall not, by any act, delay, omission or otherwise, be deemed to have waived any right or remedy under the Contract or any breach of the terms and conditions of the Contract, including, but not limited to, these Terms of Purchase. A waiver by any Party of any right or remedy under this Agreement on any one occasion shall not be construed as a bar to any right or remedy which the Party would otherwise have had on any future occasion. All of Buyer’s rights and remedies hereunder are cumulative, may be exercised singly or concurrently, and are not exclusive of any rights and remedies provided by any other agreement or applicable law.

O. WARRANTIES: Seller warrants goods supplied and work or services performed under the Contract conform to specifications in the Contract and are merchantable and fit and sufficient for the particular purposes intended by Buyer. Seller acknowledges that Seller knows of Buyer’s intended use of the goods and warrants and guarantees that such goods have been selected, designed, manufactured or assembled by Seller based upon Buyer's intended use.

Seller further warrants to Buyer and to any third party ultimately using an item whether such third party is a customer of Buyer or not that: (a) the goods shall be new, (b) the goods and services shall be of good material, workmanship and quality, and free from faults and defects, (c) the goods and services shall conform to any samples, drawings, specifications, performance criteria standards or other requirements that are referred to in the Contract or that Buyer has otherwise specified or agreed to in writing, (d) Seller’s performance of the Contract, and the goods and services provided thereunder, shall be in compliance with all applicable laws, regulations, and safety standards, (e) the prices of the goods and services and any discounts, advertising allowances or other merchandising payments or services that the Contract requires Seller to provide to Buyer are as favorable to Buyer as the lowest prices and the highest discounts, advertising allowances or other merchandising payments or services that Seller provides to other buyers of comparable goods or services, (f) Seller shall promptly furnish to Buyer all information and documents (including, but not limited to, complaints, inquiries, test or inspection results and warnings) that Seller receives from an end-user of the goods, a government agency, an employee or agent of Seller or any other person or source and that suggests or indicates that the goods may not conform to the requirements of this Paragraph O, (g) Seller has and follows, and will continue to have and follow, adequate compliance, quality and security procedures that will assure that the goods and services will comply with the foregoing warranties, representations and agreements; and (h) the goods and services provided by Seller will not infringe, misappropriate, dilute, or otherwise violate the intellectual property rights of any third party. If Buyer requests it, Seller shall give Buyer certificates of compliance with all applicable laws and regulations. Buyer's approval of a sample, drawing, specification or standard shall not relieve Seller of any of its obligations or warranties under this Paragraph O, including, without limitation, its warranties of merchantability, fitness for a particular purpose, and compliance with laws.
Seller shall be liable for all damages both to Buyer and its customers incurred as a result of any defect or breach of warranty in any goods covered by the Contract. At Buyer's option, Seller shall promptly correct any defect identified by Buyer, at Seller's expense.
The foregoing express warranties shall not be limited and shall be in addition to any warranty customarily made by Seller of its products and any implied warranties and shall be construed as conditions as well as warranties.
SELLER'S WARRANTY SHALL EXTEND FOR A PERIOD OF 12 MONTHS AFTER THE ITEM IS DELIVERED AND ACCEPTED BY BUYER AND APPLIED TO ITS INTENDED USE and survive all inspections and tests, acceptance and payment and shall be considered to have been given not only to Buyer but also to Buyer's customers and to end-users of the goods. Where Buyer incorporates the goods into a product of Buyer to be delivered to its customer, Seller's obligation under this clause shall be for the benefit of Buyer's customer and shall extend to one year after application of the item to its intended use.
The warranties represented and covenants of parties hereto shall survive the delivery of the goods or completion of the work or services provided and shall be fully enforceable thereafter and shall extend such warranties to any third party ultimately using any goods. Seller's warranty hereunder is part consideration for the Contract; any payment by Buyer hereunder is conditional upon this warranty remaining in effect; and no modification or other change of this warranty shall be valid unless evidenced by Buyer's written change order.

P. QUALITY STANDINGS: If a special brand is listed in the order, the goods being purchased must meet the standard for quality, performance, and use of such brand. If Seller is willing to supply a product equivalent to the designated special brand, it must first provide Buyer with descriptive literature identifying its brand, including the quality, performance, and specifications therefore. If Buyer elects to accept goods purported to be equal to the special brand, the goods may be rejected and dealt with as provided in Paragraph L hereof, if any goods are determined to be non-conforming.

Q. INSPECTION AND QUALITY CONTROL:

All items furnished under the Contract by Seller to Buyer shall be subject to inspection and tests by Buyer, or representatives of a third-party purchasing Buyer's product in which goods will be used ("User's Representative"). To the extent practicable, inspection may be made at all times and places, including the period and location of manufacture and prior to acceptance.
If inspections or tests are made by Buyer or User's Representative on the premises of Seller or Seller’s supplier or subcontractor, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience of such inspectors in the performance of their duties. If inspection or test is made at a point other than the premises of Seller, supplier or subcontractor, it shall be at the expense of Buyer except as otherwise provided in the Contract. Buyer shall not be liable for any reduction in value of samples used in connection with such inspections or tests. All inspections and tests by Buyer or User's Representative shall be performed in such manner as to not unduly delay the work. Buyer reserves the right to charge Seller any additional cost to inspect and test when supplies are not ready at the time such inspection and test is requested by Seller or when re-inspection or retest is necessitated by prior rejection. Failure to inspect, accept or reject goods shall neither relieve Seller from responsibility for such goods as are not in accordance with the Contract's requirements nor impose liability on Buyer.
Seller shall provide and maintain inspection and quality control systems acceptable to Buyer covering the items furnished hereunder. Records of all inspection work by Seller shall be kept intact and made available upon request by Buyer during the performance of the Contract and for six years following the completion of all deliveries under the Contract.
Without limiting the generality of Paragraph Q.1., Seller agrees if a special production run is made, that the first item produced under the Contract (the "First Article") is subject to first article acceptance prior to further fabrication (the "First Article Acceptance"). If the initial First Article submitted fails to meet the First Article Acceptance requirements, a new First Article will be submitted for approval. This procedure shall be repeated until an acceptable First Article has been approved by Buyer. First Article Acceptance shall be based on the requirements of the drawings, specifications, and purchase documents, as applicable under the Contract. Acceptance of the First Article shall not be considered acceptance of subsequent goods produced. The submission of a First Article shall be accompanied by the physical data found by Seller, the tool number used to produce the First Article and, in the case of goods produced in molds, dies, etc., with more than one cavity, Seller shall submit a First Article from each cavity and identify the cavity each First Article represents.
Seller shall provide Buyer appropriate material certifications as described in the Contract, including, but not limited to, American Bureau of Shipping Inspection Certificates, material, physical, and/or chemical analysis certifications, OSHA/WISHA Material Safety Data Sheets, and U.S. Coast Guard acceptance certifications.

R. CHANGES: Buyer may at any time, by written notice to Seller, change any order or the Contract as to (1) specifications for the goods or services, (2) time or place of delivery or performance, (3) method of packing or shipment, or (4) quantity of the goods or extent of the services. If this causes a material change in Seller's cost or time of performance, Buyer and Seller shall discuss an equitable adjustment (up or down) in the price or time for delivery or performance, or both, provided that Seller gives Buyer a written request for an adjustment within 20 days after Buyer notifies Seller of the change. Notwithstanding any such discussions, Seller will promptly implement such changes as directed by Buyer without delay. In the event that Buyer and Seller are unable to reach agreement on any pricing adjustments to be made in connection with such changes, any difference in price or time for performance resulting from such changes will be equitably adjusted by Buyer based on a fair cost assessment after receipt of documentation pertaining to such changes in such form and detail as Buyer may direct.

S. TERMINATION AT BUYER'S OPTION: Buyer may terminate the Contract, in whole or in part, at any time by written notice to Seller stating the extent and effective date of termination. When Seller receives notice of termination under the preceding sentence or under Paragraph N, Seller shall, unless otherwise directed by Buyer, stop work and acquisition of materials under the Contract and protect property in Seller's possession in which Buyer has or may acquire an interest. Not later than 30 days after the effective date of termination under this Paragraph S (but excluding any termination under Paragraph N), Seller may submit to Buyer its claim, if any, for reasonable compensation for termination. Buyer shall have the right to audit and inspect Seller's books, records and other documents that relate to the termination claim. If the parties cannot agree within a reasonable time upon the amount of fair compensation for the termination, then Buyer will pay to Seller, without duplication, (1) to the extent due, the Contract price for conforming goods or services that Seller shall have completed and delivered or performed (as applicable) prior to termination and in accordance with the provisions of the Contract and that Buyer shall not have paid for and (2) Seller’s actual, documented costs of work-in-process and raw materials incurred by Seller in furnishing the goods or services under the Contract, to the extent such costs are reasonable in amount and are properly allocable or apportionable under generally accepted accounting principles to the terminated portion of the Contract, less (a) any payments that Buyer has previously made applicable to the forgoing and (b) the value to Seller of any raw materials, work-in-process and finished goods that Seller retains or that are usable by Seller in its business, and that are allocable to the terminated portion of the Contract under generally accepted accounting principles. Buyer will pay these amounts after Seller delivers to Buyer any such finished goods, raw materials or work-in-process. If Buyer shall have made payments of the purchase price to Seller that in the aggregate exceed the total amounts payable by Buyer to Seller under the preceding provisions, then Seller shall promptly refund the excess to Buyer. Termination under this Paragraph S shall terminate only Seller's obligation and right to deliver goods or provide services under any provision of the Contract other than this Paragraph S and shall not terminate or impair Seller's other obligations, or any of Buyer's rights, under the Contract.

T. INFRINGEMENTS: Seller warrants that Buyer's purchase, installation and/or use of the goods or services covered by the Contract will not result in any claim of infringement, or actual infringement of any proprietary rights including, but not limited to, any patent, trademark, copyright, franchise, industrial design right, trade secret, or other intellectual property right. Seller shall indemnify and hold Buyer and its directors, officers, employees, and agents ("representatives") harmless, and defend Buyer and its representatives if Buyer requests, from and against all claims, losses, damages, causes of action and liabilities of every kind and nature, including without limitation reasonable attorneys' and professional fees (without waiver of Seller's obligation to indemnify Buyer hereunder), arising from or out of any breach of the foregoing warranty. Seller expressly waives any claim that any such claims arose out of compliance with Buyer’s specifications or direction.

U. RISK OF LOSS: Regardless of delivery location or applicable Incoterm, Seller agrees to bear all risk of loss, injury, or destruction of goods and materials ordered herein which occur prior to acceptance by Buyer. No such loss, injury, or destruction shall release Seller from any obligations hereunder.

V. INDEMNIFICATION; HOLD HARMLESS: Seller shall indemnify, and hold Buyer and its representatives harmless, and defend Buyer and its representatives if Buyer requests, from and against any claims, liabilities, losses, damages and expenses (including, without limitation, attorneys' and professional fees and other legal expenses) brought against or incurred by Buyer or its representatives because of (1) any breach of or failure to perform the Contract or these Terms of Purchase, (2) any breach by Seller or failure to perform any of its obligations or warranties to, or agreements with, Buyer, (3) any death, injury or damage to any person or property alleged to have been caused by or arising out of (a) the goods or services or (b) Seller's manufacture and delivery of the goods or performance of the services, and/or (4) from other acts or omissions of Seller, its officers, agents, employees, subcontractors, and guests.

W. LEGAL COMPLIANCE: Seller represents and warrants that the goods and/or services described in the order will be manufactured, performed, distributed, shipped, packed, labeled and delivered, and that required notices will be given, in compliance with all applicable laws, regulations, ordinances, standards, conventions, ordinances and orders, and Seller shall, upon request, furnish certification of such compliance. By accepting the order, Seller certifies that the goods and/or services purchased hereunder will be manufactured, delivered and performed in accordance with the Fair Labor Standards Act of 1938, as amended, and agrees to furnish, if requested by Buyer, on each invoice a certification of such fact in a form approved by the United States Department of Labor. Seller specifically agrees to comply with the provisions of Presidential Executive Order 11246, the Federal Occupational Safety and Health Act of 1970, the Federal Toxic Substances Act, as amended, and the Washington Industrial Safety and Health Act of 1973, as amended, and the standards and regulations issued thereunder. Seller will indemnify and hold Buyer and its representatives harmless, and defend Buyer and its representatives if Buyer requests, from and against any liability, claims, demands or expenses (including, without limitation, legal or other professional fees) arising from or relating to Seller’s noncompliance with this paragraph.

X. BUYER'S PROPERTY, SPECIAL TOOLINGS, DRAWINGS OR SPECIFICATION:

Any designs, drawings, specifications, methods of manufacture, intellectual property, documents and other information and any supplies, materials, prototype and production tooling, jigs, dies, gauges, fixtures, molds, patterns, equipment, related software and other items (together with any accessions, appurtenances, modifications, repairs, refurbishments and replacements thereof) (“Special Tooling”) or other property that Buyer furnishes to, or acquires from, Seller or are prepared by Seller in connection with Seller's manufacture of the goods or performance of the services ("Buyer Property") are and shall at all times be Buyer's sole and exclusive property and all right, title and interest in Buyer’s Property will remain with Buyer, subject only to the limited right of possession granted to Seller under this Paragraph X. Seller shall (a) maintain the Buyer Property in good condition, (b) conspicuously mark the Buyer Property "Property of EJ", (c) not commingle the Buyer Property with property of Seller or third parties, (d) allow Buyer to inspect and examine the Buyer Property at any time, and (e) return the Buyer Property to Buyer upon its request. To the extent that Seller obtains any right, title, or interest in or to any Buyer Property or any improvements, modifications, or derivative works thereto, Seller hereby assigns, and agrees to assign, all of Seller’s right title and interest in and to same to Buyer. Buyer will, at all times, have the right to immediate possession of Buyer’s Property on Buyer’s demand.
Seller is responsible for the protection, calibration, maintenance and care (other than normal wear) of all Buyer Property. Said tooling or equipment shall be subject to surveillance inspection upon notice and shall be returned in an acceptable condition immediately upon demand or notice.
Seller will bear all risk of loss of and damage to Buyer’s Property. Buyer’s Property will not be used by Seller for any purpose other than the performance of the Contract; will not be commingled with the property of Seller or with that of a third person; and will not be moved from Seller’s premises without Buyer’s prior written approval.
Except as otherwise specified in the order, any Special Tooling shall be furnished by and at the expense of Seller for Buyer and shall be Buyer’s Property. To the fullest extent permitted by law, Seller waives any liens, claims, encumbrances, interests or other rights that Seller might otherwise have or assert on or with respect to any of Buyer’s Property for work performed on such property or otherwise.

Y. SERVICE OR INSTALLATION OF WORK: In the event the order requires the performance of work or installation of goods by Seller upon any property or project of Buyer, the following conditions shall also be applicable.

Seller shall take commercially reasonable precautions to protect all property and persons from damage or injury arising out of its work and shall comply with all fire, safety and other applicable regulations prescribed by any governmental agency and by Buyer and/or owner of the project upon which work is being performed, and shall be responsible for the observance thereof by all subcontractors, employees, agents and representatives of Seller and its subcontractors.
Seller shall timely pay for all labor and material used in Supplier’s manufacture of the goods, and if Seller fails to do so Buyer without waiving any rights or remedies against Seller for or by reason of such failure may, but without any obligation to do so, pay the same and deduct the amount of such payments from sums due Seller hereunder; and Buyer may withhold any payment to Seller until receiving such affidavits, waivers, and releases with respect to claims for labor and materials as Buyer may require.
All work shall remain at Seller's risk prior to written acceptance by Buyer and/or the owner of the project and Seller shall replace at its own expense all work damaged or destroyed by any cause whatsoever.
Seller shall observe and comply with, to the extent required by Buyer, all wages, hours and working condition requirements established by Buyer on the project or required of Buyer by applicable labor agreement
Seller shall act as an independent contractor and not as the agent or representative of Buyer. Seller shall perform its work in accordance with the schedules and work programs established by Buyer and shall fully cooperate with Buyer and others engaged in work on the project so that the work on the entire project may be performed with the utmost speed, consistent with good practices. Buyer shall have the authority to coordinate work among Buyer, Seller, and third parties.
Seller shall carry on its work so that the premises shall at all times be clean, orderly and free from debris and upon completion shall remove all equipment and unused materials from the project; clean up all refuse and debris and leave the site of the work clean orderly and in good condition.
Seller shall cause Seller's employees, agents, contractors and subcontractors to abide by Buyer's work and safety rules. Buyer has the right to exclude personnel from Buyer's premises who do not abide by such rules, and at Buyer's election, to declare a default under the Contract.
Seller is solely liable for its employees, agents, contractors or subcontractors and their actions while on Buyer's premises and Seller shall indemnify, and hold Buyer and its representatives harmless, and defend Buyer and its representatives if Buyer requests, from and against any claims, liabilities, losses, damages and expenses (including, without limitation, attorneys' and professional fees and other legal expenses) arising from or out of the presence or activity of Seller's employees while at Buyer's premises.

Z. ADVERTISING: Without Buyer’s prior written consent in each instance, Seller will not make any reference to Buyer or its representatives, or use any trademark of Buyer in any manner, including in the description or marketing of products produced, distributed, or sold by or on behalf of Seller or in any advertising, sales promotion, letterhead, publicity, or other public or media communications of Seller; or advertise, publicize, or publish that Seller has contracted to provide, or has previously provided, goods or services to Buyer.

AA. GOVERNMENT CONTRACTS: If Buyer will use the goods or services covered by the Contract in connection with a contract with the United States or other government (or a contractor of the United States of other government), then all terms and conditions that the government contract or any law or regulation requires to be included in any such contract ("Government Terms") are incorporated in the Contract by reference, including, without limitation, the following Federal Acquisition Regulation (FAR) clauses, which are incorporated by reference, to implement provisions of United States law or Executive Orders applicable to the acquisition of commercial products: (1) 52.203-3, Gratuities; (2) 52.203-7, Anti-Kick Back Procedures; (3) 52.203-19, Prohibition on Certain Internal Confidentiality Agreements or Statements; (4) 52.203-13, Contractor Code of Business Ethics and Conduct (41 U.S.C. 3509); (5) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended for Debarment (31 U.S.C. 6101); (6) 52.222-3, Convict Labor (E.O. 11755); (7) 52.222-19, Child Labor (E.O. 13126); (8) 52.222-21, Prohibition of Segregated Facilities; (9) 52.222-26, Equal Opportunity (E.O. 11246); (10) 52.222-35, Equal Opportunity for Veterans (38 U.S.C. 4212); (11) 52.222-50, Combating Trafficking in Persons (22 U.S.C. chapter 78 and E.O. 13627); (12) 52.223-18, Encouraging Contractor Policies to Ban Text Messaging while Driving (E.O. 13513); and (13) 52.225-13, Restrictions on Certain Foreign Purchases. If a provision of the Contract is inconsistent with a Government Term, then the Government Term shall control.

AB. INSURANCE: Seller shall maintain insurance coverage, including, but not limited to, commercial general liability and automobile liability coverage, with insurance carriers having a minimum financial rating of A- and in amounts that will fully protect both Seller and Buyer from all claims and liabilities of any kind or nature for property damage, personal injury, death and economic damage, to any person, that arises from the goods or their use or the performance of the services or any activities connected with the services. Seller shall maintain workers’ compensation and employer’s liability and compensation insurance that will protect Buyer from all claims and liabilities that Seller or any employee or agent of Seller makes under any applicable worker's compensation or occupational disease acts. All insurance that this Paragraph AB requires shall be in amounts and coverages, and shall be issued by insurers, as set forth on the order or that are satisfactory to Buyer. Upon Buyer's request at any time, Seller shall furnish to Buyer certificates evidencing required insurance. Seller’s furnishing of certificates of insurance or purchase of insurance will not release Seller of any of its obligations or liabilities under the Contract.

AC. INDEPENDENT CONTRACTOR: Seller is an independent contractor, and neither Seller nor any of Seller's employees or agents shall be considered agents or employees of Buyer, and Seller shall furnish, at Seller's expense, all labor, materials, equipment, transportation, facilities and other items that are necessary to perform the services. Neither party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other. Seller agrees to indemnify and hold Buyer and its representatives harmless from any claim or claims relating to employment, income or other taxes which may be assessed in connection with payments to Seller under the Contract by a federal, state or local tax authority.

AD. INSECURITY AND ADEQUATE ASSURANCE: If Buyer ever believes in good faith that it has grounds for insecurity as to Seller's performance, then Seller shall provide adequate assurance of due performance within ten days after Buyer demands the assurance, which shall be considered to be a reasonable time. Seller's failure to do so shall be considered to be a repudiation by Seller of the Contract and of all other then-existing contracts that provide for Seller to sell goods and/or services to Buyer ("Outstanding Contracts"). "Grounds for insecurity" include, but are not limited to (1) Seller's failure, refusal, or inability to perform an obligation under an Outstanding Contract, (2) Seller's insolvency or inability or failure to pay its obligations as they become due, (3) a deterioration in Seller's financial condition, and (4) Seller's failure to provide financial statements and other financial information to Buyer promptly upon Buyer's request.

AE. CONFIDENTIALITY AND NON-USE: Seller shall not sell or offer to sell or otherwise provide to anyone other than Buyer any goods made in accordance with any drawings, designs or specifications that Buyer furnishes to Seller or that incorporate, embody or are made in accordance with any of Buyer's intellectual property or the Buyer Property. Seller shall maintain the confidentiality of, and shall not disclose or use or permit to be disclosed or used or to be viewed by any third party (including any of Seller's suppliers), the goods, any designs of or specifications for the goods, any Buyer Property or any information concerning Buyer's business, operations or activities, including, without limitation, information concerning Buyer's present or proposed products, product developments, plans, strategies, finances, know-how, sales, customers and marketing or sales techniques ("Confidential Information"), except that Seller may disclose Confidential Information to a third party (other than a competitor of Buyer or a subsidiary or affiliate of a competitor) to the extent disclosure is necessary in order for Seller to perform its obligations under the Contract. If Seller breaches or threatens to breach this Paragraph AE or Paragraph X, then Buyer's remedies at law will be inadequate. Therefore Buyer shall have the right of specific performance or injunctive relief, or both, without the posting of any bond or other security, in addition to any and all other remedies and rights at law or in equity, and Buyer's rights and remedies shall be cumulative.

AF. INTELLECTUAL PROPERTY: All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, trademarks, trade names, trade dress, service marks, names, software and other works and matters that Seller creates or develops in the course of Seller's performance of the services or Seller's design or development of the goods for Buyer, including all proprietary rights in the foregoing ("Intellectual Property") shall be Buyer's sole property, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in the Intellectual Property. All copyrightable works that Seller creates or develops in the course of Seller's performance of the services or Seller's design or development of the goods for Buyer shall be considered "works made for hire" within the meaning of the federal Copyright Act of 1976, as amended, and under the equivalent laws of any other country. To the extent that any such copyrightable work is not considered a "work made for hire," it shall be the sole property of Buyer, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in it and in all copyright rights in it. Seller shall sign and deliver to Buyer all assignments and other documents, and Seller shall take all other actions, that Buyer requests for the purpose of perfecting Buyer's ownership of and title to the Intellectual Property, Buyer Property, Special Tooling, and in any copyrightable work that is not considered a "work made for hire" and in all copyright rights in it. If the goods or their design are subject to any pre-existing patent rights or other proprietary rights that Seller holds, then Seller grants to Buyer an irrevocable, transferable, sublicensable, worldwide, non-exclusive, royalty-free license of such patent rights and other proprietary rights to enable Buyer to modify, repair, rebuild, manufacture, use and sell any or all of such designs and goods. This license is in addition to all licenses impliedly granted to Buyer as a purchaser of the goods. Seller shall not use Buyer's name or any trademark, trade name, service mark or trade dress that Buyer owns or that is licensed to Buyer or to any affiliate of Buyer, without Buyer's express, written consent, and Seller shall not sell to anyone other than Buyer any goods bearing any such trademark, trade name, service mark or trade dress.

AG. GOVERNMENTAL DECLARATION: If a governmental agency declares that any material included in any of the goods is, or if Buyer at any time believes in good faith that any such material may be, unsafe or unfit for the intended use of the goods, then, without limiting other rights and remedies that are available to Buyer under these Terms of Purchase or applicable law, (1) Seller shall give Buyer written notice of the declaration and shall furnish to Buyer copies of the declaration and of all relevant notices, documents and correspondence, (2) Seller shall stop including the material in the goods, (3) Buyer may terminate the order or the Contract, without liability to Seller, by giving written notice to Seller, which shall be effective immediately or on any later date that the notice specifies, (4) if Buyer does terminate, then Buyer's obligations under the Contract shall terminate immediately and Buyer shall not have an obligation to pay Seller damages or other compensation by reason of the termination, (5) without limiting other remedies that Buyer may exercise, Buyer shall have the right to recall (i.e. purchase or repurchase) any or all of the goods from its customers and end-users and any others having possession of the goods, and Seller shall reimburse Buyer for all costs that Buyer incurs in doing so and shall assist Buyer in the recall, to the extent that Buyer requires Seller to do so, (6) if Seller demonstrates to Buyer's satisfaction that there is a safe and fit substitute material that conforms to all of the requirements of the Contract and that Seller can and will use the substitute in the goods, then Buyer shall have the right, but no obligation, in Buyer's sole discretion, to reinstate the Contract and to require Seller to perform in accordance with the Contract, except that Seller shall use the substitute material, and (7) whether or not Buyer terminates and/or reinstates the Contract, Seller shall pay to Buyer an amount equal to all damages that Buyer incurs by reason of the declaration by the governmental agency or such good faith belief by Buyer and any resulting recall or delay in performance and/or any termination of the Contract by Buyer.

AH. ATTORNEYS' FEES: In any suit or action brought to enforce any term, condition, or covenant herein, or to recover damages arising from any breach or nonperformance of the Contract, the losing party shall pay to the prevailing party reasonable attorneys' fees and all other costs and expenses which may be incurred by the prevailing party in such suit or action and in any reviews thereof and appeals therefrom; provided that this Paragraph AH shall not limit any right of Seller to recover its attorneys’ or professional fees as otherwise specified in the Contract, including but not limited to, these Terms of Purchase.

AI. LAW: The laws of the State of Michigan shall govern the Contract, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980), as amended, and any conflict of law provisions that would require application of another choice of law. Any action or proceedings by Buyer against Seller may be brought by Buyer in any court(s) having jurisdiction over Seller or, at Buyer’s option, in the court(s) having jurisdiction in the County of Charlevoix, State of Michigan, in which event Seller consents to such jurisdiction. Any actions or proceedings by Seller against Buyer may be brought by Seller only in the court(s) having jurisdiction in the County of Charlevoix, State of Michigan.

AJ. INTENDED USE: Unless otherwise stated, the goods ordered are to have an intended usage in the manufacture, construction, modification, maintenance, repair and/or serving of the company's products and facilities.

March 2023

Canada

A. ACCEPTANCE:

The order is an offer by the EJ Group entity named in the order ("Buyer") to purchase goods and/or services from Seller. Buyer's placement of the order with Seller is expressly conditioned upon Seller's acceptance of all of the terms and conditions of purchase contained herein.
In these Terms of Purchase, "Seller" means the seller named in the order, "goods" and "services" mean the goods or services that Buyer is to purchase from Seller, as described in the order, "Contract" means any contract formed pursuant to the order (and includes any accepted order and these Terms of Purchase), and "order" means any purchase order, supply agreement, statement of work, or other similar document issued by or on behalf of Buyer related to Seller’s supply to Buyer, and Buyer’s purchase from Seller, of goods and/or services, each as amended, restated, supplemented or otherwise modified from time to time in accordance with these Terms of Purchase.
The Contract includes the terms of any written agreement between Buyer and Seller. If for any reason, however, no such written agreement applies to Buyer's purchase from Seller under the order, then: (1) the order is an offer to buy the goods and/or services described therein by Buyer, and Buyer rejects any earlier offers to sell such goods and/or services made by Seller; (2) if the order nevertheless is in legal effect an acceptance of an earlier offer by Seller, then Buyer's acceptance of such offer is conditional upon Seller's assent to all of these Terms of Purchase, provided that any additional or different terms specifically accepted in writing by Buyer’s Procurement Department will be incorporated as part of the Contract; and (3) by signing and returning a copy of the order or by accepting the order electronically or by commencing performance of the subject matter of the Contract, except as may be otherwise specified in a Contract, Seller accepts, and agrees and assents to, all of these Terms of Purchase as part of the Contract. Notwithstanding the foregoing, if both Buyer and Seller have signed a separate contract that specifies the terms that will apply to Seller's sales of goods and/or services to Buyer and Buyer's purchases of such goods and/or services from Seller ("Special Contract") and if there is ever a direct conflict between a provision of the Special Contract and these Terms of Purchase, then the provision of the Special Contract shall control.
Any additional or different terms or conditions which may appear in any communication or document issued by Seller are hereby expressly rejected by Buyer and shall not be effective or binding, or become part of the Contract, except to the extent, if any, specifically accepted in writing by Buyer's Procurement Department.
Any objection by Seller to these Terms of Purchase shall be ineffective unless made and delivered by Seller in writing, so as to be received by Buyer, by not later than the earlier to occur of (1) Seller’s commencement of work under the Contract and (2) 10 days following the date of the order.

J. ASSIGNMENT: Seller shall not assign or transfer, directly or indirectly, the Contract or the right to payment due hereunder, without Buyer's prior written consent.

M. DEFAULT: Buyer may, subject to the provisions of Paragraph N, by written notice of default and without liability to Seller, terminate the whole or any part of the Contract or exercise any other remedy provided to buyers of goods by law or in equity including any remedy under the Ontario Sale of Goods Act or any analogous legislation of another province or territory of Canada, in any of the following circumstances:

Seller fails to make delivery of the goods or to perform the services within the time specified in the Contract, including any extension thereof;
In Buyer's good faith judgment, Seller fails to perform any of the other provisions of the Contract or fails to make progress so as to endanger performance of the Contract in accordance with its terms and does not cure such failure within a period of ten days, or such longer period as Buyer may authorize in writing, after receipt of notice from Buyer specifying such failure;
Seller breaches or repudiates of any of the terms or conditions of the Contract, including, but not limited to, these Terms of Purchase;
Seller conducts a sale of a material portion of its business or a change of control that directly or indirectly impacts the manufacturing or supply of the goods without having first obtained Buyer’s prior written consent;
Seller fails to provide adequate assurance of due performance of any Contract within 10 days following receipt of Buyer’s demand for such assurance; or
Seller becomes insolvent or makes an assignment for the benefit of creditors, or if there shall be instituted by or against Seller any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt or insolvency law of any jurisdiction or for the appointment of a receiver or trustee in respect to any of Seller's property.

N. REMEDIES: The remedies of the parties include, without limitation:

Without limiting other rights and remedies available to it, Buyer may, at its option, (a) return nonconforming goods to Seller, at Seller's risk and expense, and require Seller either to give Buyer full credit against the price or promptly to repair or replace the goods at Seller's risk and expense, (b) retain nonconforming goods and set off losses against any amount that Buyer owes Seller or (c) repair or replace nonconforming goods and charge Seller with the expense.
If at any time (a) Seller defaults in the performance of any of Seller's obligations to Buyer under the Contract or under any other agreement between Seller and Buyer, (b) Seller repudiates the Contract, or (c) a warranty or representation that Seller made to Buyer in or in connection with the Contract is false or misleading in a material respect, then Buyer may terminate the Contract, in whole or part, without liability to Seller, and Seller shall promptly pay to Buyer all direct and indirect damages incurred by Buyer relating to or arising from the event or occurrence leading to such termination and the termination itself. In addition, Buyer may procure upon such terms and in such manner as Buyer may deem appropriate replacement goods or services similar to those cancelled and Seller shall be liable to Buyer for any excess costs incurred by Buyer, provided that, at Buyer’s option, Seller shall continue the performance of the Contract to the extent not cancelled in accordance with the Contract.
If Buyer does terminate the Contract due to Seller’s default, then at Buyer’s option, Seller shall immediately deliver to Buyer all finished and unfinished goods and all work-in-process and raw materials that Seller manufactured or procured in anticipation of and/or in connection with its performance of the Contract and all designs, drawings, specifications and software that Buyer is purchasing or is licensed to Buyer under the Contract, including all work-in-process, all source, object and pseudo codes, all preexisting programs intended to be incorporated in the software and all intellectual property rights in the foregoing. Buyer's payment of part or all of the purchase price shall not be a precondition to Seller's obligation to make the delivery of such items. After Seller has made the delivery and Buyer has determined its damages due to Seller’s default (including, without limitation, any cost of "cover" or of completing the manufacture or processing of the goods), then Buyer will pay to Seller any excess of (1) any unpaid part of the purchase price properly allocable to any conforming goods, work-in-process and raw materials that Seller delivered to Buyer over (2) Buyer's damages.
The rights and remedies of Buyer provided in this Paragraph N shall not be exclusive and are in addition to any other rights and remedies provided by law or under the Contract.
The failure of Buyer to insist upon strict performance of any terms of the Contract or to exercise any rights hereunder shall not be construed as a waiver of Buyer's rights.
Any delay or failure of either party to perform its obligations under the Contract will be excused to the extent that, respectively, Seller is unable to manufacture, procure, sell or deliver, or Buyer is unable to pay for, accept delivery of, buy or use, the goods or services covered by the Contract, directly as the result of an event or occurrence beyond the reasonable control of such party, without such party’s fault or negligence provided that the affected party notifies the other party within 10 days of discovery of any of the below-mentioned events:
1. Events beyond the control of a party which give rise to the excused party's failure to perform, including, without limitation, acts of God, public enemy, or any governmental authority (whether valid or invalid), or fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather.
2. Default of a supplier or subcontractor, if such default gives rise to Seller's failure to perform and arises out of causes beyond the control of both Seller and the supplier or subcontractor, without the fault or negligence of either of them, and Seller makes a concerted effort to obtain replacement supplies or services in time to meet the requirements of the order.
Credits and/or adjustments not received within 60 days following the return of material or verbal agreement will be deducted by Buyer from any subsequent invoice or invoices or billed to the shipper at the agreed amount including any shipping and handling charges.
Seller's remedies for any alleged breach by Buyer shall be limited to the direct foreseeable damages of Seller and in no event shall Seller be entitled, and Seller waives any right of Seller, to recover any indirect, incidental or consequential damages.
If a material part of Buyer's business in which the goods and/or services are to be employed is shut down, permanently or temporarily, due to any event or occurrence outside of the reasonable control of Buyer (such as, without limitation, cancellation of a key contract, casualty or labor problems), Buyer may cancel the Contract without liability to Seller; provided that Buyer shall pay Seller the Contract price for conforming finished goods delivered to Buyer and/or conforming services performed by Seller, in each case prior to such cancellation.
Buyer's termination under this Paragraph N shall terminate only Seller's obligation and right to deliver goods or provide services other than as this Paragraph N requires and shall not terminate or impair Seller's other obligations, or any of Buyer's rights, under the Contract. In addition the Parties shall not, by any act, delay, omission or otherwise, be deemed to have waived any right or remedy under the Contract or any breach of the terms and conditions of the Contract, including, but not limited to, these Terms of Purchase. A waiver by any Party of any right or remedy under this Agreement on any one occasion shall not be construed as a bar to any right or remedy which the Party would otherwise have had on any future occasion. All of Buyer’s rights and remedies hereunder are cumulative, may be exercised singly or concurrently, and are not exclusive of any rights and remedies provided by any other agreement or applicable law.

Seller further warrants to Buyer and to any third party ultimately using an item whether such third party is a customer of Buyer or not that: (a) the goods shall be new, (b) the goods and services shall be of good material, workmanship and quality, and free from faults and defects, (c) the goods and services shall conform to any samples, drawings, specifications, performance criteria standards or other requirements that are referred to in the Contract or that Buyer has otherwise specified or agreed to in writing, (d) Seller’s performance of the Contract, and the goods and services provided thereunder, shall be in compliance with all applicable laws, regulations, and safety standards, (e) the prices of the goods and services and any discounts, advertising allowances or other merchandising payments or services that the Contract requires Seller to provide to Buyer are as favorable to Buyer as the lowest prices and the highest discounts, advertising allowances or other merchandising payments or services that Seller provides to other buyers of comparable goods or services, (f) Seller shall promptly furnish to Buyer all information and documents (including, but not limited to, complaints, inquiries, test or inspection results and warnings) that Seller receives from an end-user of the goods, a government agency, an employee or agent of Seller or any other person or source and that suggests or indicates that the goods may not conform to the requirements of this Paragraph O, (g) Seller has and follows, and will continue to have and follow, adequate compliance, quality and security procedures that will assure that the goods and services will comply with the foregoing warranties, representations and agreements; and (h) the goods and services provided by Seller will not infringe, misappropriate, dilute, or otherwise violate the intellectual property rights of any third party. If Buyer requests it, Seller shall give Buyer certificates of compliance with all applicable laws and regulations. Buyer's approval of a sample, drawing, specification or standard shall not relieve Seller of any of its obligations or warranties under this Paragraph O, including, without limitation, its warranties of merchantability, fitness for a particular purpose, and compliance with laws.
Seller shall be liable for all damages both to Buyer and its customers incurred as a result of any defect or breach of warranty in any goods covered by the Contract. At Buyer's option, Seller shall promptly correct any defect identified by Buyer, at Seller's expense.
The foregoing express warranties shall not be limited and shall be in addition to any warranty customarily made by Seller of its products and any implied warranties and shall be construed as conditions as well as warranties.
SELLER'S WARRANTY SHALL EXTEND FOR A PERIOD OF 12 MONTHS AFTER THE ITEM IS DELIVERED AND ACCEPTED BY BUYER AND APPLIED TO ITS INTENDED USE and survive all inspections and tests, acceptance and payment and shall be considered to have been given not only to Buyer but also to Buyer's customers and to end-users of the goods. Where Buyer incorporates the goods into a product of Buyer to be delivered to its customer, Seller's obligation under this clause shall be for the benefit of Buyer's customer and shall extend to one year after application of the item to its intended use.
The warranties and covenants of the parties hereto shall survive the delivery of the goods or completion of the work or services provided and shall be fully enforceable thereafter and shall extend such warranties to any third party ultimately using any goods. Seller's warranty hereunder is part consideration for the Contract; any payment by Buyer hereunder is conditional upon this warranty remaining in effect; and no modification or other change of this warranty shall be valid unless evidenced by Buyer's written change order.

Q. INSPECTION AND QUALITY CONTROL:

All items furnished under the Contract by Seller to Buyer shall be subject to inspection and tests by Buyer, or representatives of a third-party purchasing Buyer's product in which goods will be used ("User's Representative"). To the extent practicable, inspection may be made at all times and places, including the period and location of manufacture and prior to acceptance.
If inspections or tests are made by Buyer or User's Representative on the premises of Seller or Seller’s supplier or subcontractor, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience of such inspectors in the performance of their duties. If inspection or test is made at a point other than the premises of Seller, supplier or subcontractor, it shall be at the expense of Buyer except as otherwise provided in the Contract. Buyer shall not be liable for any reduction in value of samples used in connection with such inspections or tests. All inspections and tests by Buyer or User's Representative shall be performed in such manner as to not unduly delay the work. Buyer reserves the right to charge Seller any additional cost to inspect and test when supplies are not ready at the time such inspection and test is requested by Seller or when re-inspection or retest is necessitated by prior rejection. Failure to inspect, accept or reject goods shall neither relieve Seller from responsibility for such goods as are not in accordance with the Contract's requirements nor impose liability on Buyer.
Seller shall provide and maintain inspection and quality control systems acceptable to Buyer covering the items furnished hereunder. Records of all inspection work by Seller shall be kept intact and made available upon request by Buyer during the performance of the Contract and for six years following the completion of all deliveries under the Contract.
Without limiting the generality of Paragraph Q.1., Seller agrees if a special production run is made, that the first item produced under the Contract (the "First Article") is subject to first article acceptance prior to further fabrication (the "First Article Acceptance"). If the initial First Article submitted fails to meet the First Article Acceptance requirements, a new First Article will be submitted for approval. This procedure shall be repeated until an acceptable First Article has been approved by Buyer. First Article Acceptance shall be based on the requirements of the drawings, specifications, and purchase documents, as applicable under the Contract. Acceptance of the First Article shall not be considered acceptance of subsequent goods produced. The submission of a First Article shall be accompanied by the physical data found by Seller, the tool number used to produce the First Article and, in the case of goods produced in molds, dies, etc., with more than one cavity, Seller shall submit a First Article from each cavity and identify the cavity each First Article represents.
Seller shall provide Buyer appropriate material certifications as described in the Contract, including, but not limited to, applicable shipping certifications, material, physical, and/or chemical analysis certifications, Ontario Workers’ Compensation Act and Ontario Occupational Health and Safety Act certifications (or certifications under any analogous legislation of another province or territory of Canada) and Workplace Hazardous Materials Information System (WHMIS) Material Safety Data Sheets.

W. LEGAL COMPLIANCE: Seller represents and warrants that the goods and/or services described in the order will be manufactured, performed, distributed, shipped, packed, labeled and delivered, and that required notices will be given, in compliance with all applicable laws, regulations, ordinances, standards, conventions, ordinances and orders, and Seller shall, upon request, furnish certification of such compliance. By accepting the order, Seller certifies that the goods and/or services purchased hereunder will be manufactured, delivered and performed in accordance with all applicable laws including, without limitiation, laws relating to fair labour practices, health and safety and the handling and release of hazardous substances. Seller will indemnify and hold Buyer and its representatives harmless, and defend Buyer and its representatives if Buyer requests, from and against any liability, claims, demands or expenses (including, without limitation, legal or other professional fees) arising from or relating to Seller’s noncompliance with this paragraph.

X. BUYER'S PROPERTY, SPECIAL TOOLINGS, DRAWINGS OR SPECIFICATION:

Any designs, drawings, specifications, methods of manufacture, intellectual property, documents and other information and any supplies, materials, prototype and production tooling, jigs, dies, gauges, fixtures, molds, patterns, equipment, related software and other items (together with any accessions, appurtenances, modifications, repairs, refurbishments and replacements thereof) (“Special Tooling”) or other property that Buyer furnishes to, or acquires from, Seller or are prepared by Seller in connection with Seller's manufacture of the goods or performance of the services ("Buyer Property") are and shall at all times be Buyer's sole and exclusive property and all right, title and interest in Buyer’s Property will remain with Buyer, subject only to the limited right of possession granted to Seller under this Paragraph X. Seller shall (a) maintain the Buyer Property in good condition, (b) conspicuously mark the Buyer Property "Property of EJ", (c) not commingle the Buyer Property with property of Seller or third parties, (d) allow Buyer to inspect and examine the Buyer Property at any time, and (e) return the Buyer Property to Buyer upon its request. To the extent that Seller obtains any right, title, or interest in or to any Buyer Property or any improvements, modifications, or derivative works thereto, Seller hereby assigns, and agrees to assign, all of Seller’s right title and interest in and to same to Buyer. Buyer will, at all times, have the right to immediate possession of Buyer’s Property on Buyer’s demand.
Seller is responsible for the protection, calibration, maintenance and care (other than normal wear) of all Buyer Property. Said tooling or equipment shall be subject to surveillance inspection upon notice and shall be returned to Buyer or as Buyer may direct in an acceptable condition immediately upon demand or notice.
Seller will bear all risk of loss of and damage to Buyer’s Property. Buyer’s Property will not be used by Seller for any purpose other than the performance of the Contract; will not be commingled with the property of Seller or with that of a third person; and will not be moved from Seller’s premises without Buyer’s prior written approval.
Except as otherwise specified in the order, any Special Tooling shall be furnished by and at the expense of Seller for Buyer and shall be Buyer’s Property. To the fullest extent permitted by law, Seller waives any liens, claims, encumbrances, interests or other rights that Seller might otherwise have or assert on or with respect to any of Buyer’s Property for work performed on such property or otherwise.

Seller shall take commercially reasonable precautions to protect all property and persons from damage or injury arising out of its work and shall comply with all fire, safety and other applicable regulations prescribed by any governmental agency and by Buyer and/or owner of the project upon which work is being performed, and shall be responsible for the observance thereof by all subcontractors, employees, agents and representatives of Seller and its subcontractors.
Seller shall timely pay for all labour and material used in Supplier’s manufacture of the goods, and if Seller fails to do so Buyer without waiving any rights or remedies against Seller for or by reason of such failure may, but without any obligation to do so, pay the same and deduct the amount of such payments from sums due Seller hereunder; and Buyer may withhold any payment to Seller until receiving such affidavits, waivers, and releases with respect to claims for labour and materials as Buyer may require.
All work shall remain at Seller's risk prior to written acceptance by Buyer and/or the owner of the project and Seller shall replace at its own expense all work damaged or destroyed by any cause whatsoever.
Seller shall observe and comply with, to the extent required by Buyer, all wages, hours and working condition requirements established by Buyer on the project or required of Buyer by applicable labour agreement
Seller shall act as an independent contractor and not as the agent or representative of Buyer. Seller shall perform its work in accordance with the schedules and work programs established by Buyer and shall fully cooperate with Buyer and others engaged in work on the project so that the work on the entire project may be performed with the utmost speed, consistent with good practices. Buyer shall have the authority to coordinate work among Buyer, Seller, and third parties.
Seller shall carry on its work so that the premises shall at all times be clean, orderly and free from debris and upon completion shall remove all equipment and unused materials from the project; clean up all refuse and debris and leave the site of the work clean, orderly and in good condition.
Seller shall cause Seller's employees, agents, contractors and subcontractors to abide by Buyer's work and safety rules. Buyer has the right to exclude personnel from Buyer's premises who do not abide by such rules, and at Buyer's election, to declare a default under the Contract.
Seller is solely liable for its employees, agents, contractors or subcontractors and their actions while on Buyer's premises and Seller shall indemnify, and hold Buyer and its representatives harmless, and defend Buyer and its representatives if Buyer requests, from and against any claims, liabilities, losses, damages and expenses (including, without limitation, attorneys' and professional fees and other legal expenses) arising from or out of the presence or activity of Seller's employees, agents, contractors or subcontractors while at Buyer's premises.

AB. INSURANCE: Seller shall maintain insurance coverage, including, but not limited to, commercial general liability and automobile liability coverage, with insurance carriers having a minimum financial rating of A- and in amounts that will fully protect both Seller and Buyer from all claims and liabilities of any kind or nature for property damage, personal injury, death and economic damage, to any person, that arises from the goods or their use or the performance of the services or any activities connected with the services. Seller shall maintain workers’ compensation and employer’s liability and compensation insurance that will protect Buyer from all claims and liabilities that Seller or any employee or agent of Seller makes under any applicable worker's compensation or occupational health and safety acts. All insurance that this Paragraph AB requires shall be in amounts and coverages, and shall be issued by insurers, as set forth on the order or that are satisfactory to Buyer. Upon Buyer's request at any time, Seller shall furnish to Buyer certificates evidencing required insurance. Seller’s furnishing of certificates of insurance or purchase of insurance will not release Seller of any of its obligations or liabilities under the Contract.

AC. INDEPENDENT CONTRACTOR: Seller is an independent contractor, and neither Seller nor any of Seller's employees or agents shall be considered agents or employees of Buyer, and Seller shall furnish, at Seller's expense, all labour, materials, equipment, transportation, facilities and other items that are necessary to perform the services. Neither party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other. Seller agrees to indemnify and hold Buyer and its representatives harmless from any claim or claims relating to employment, income or other taxes which may be assessed in connection with payments to Seller under the Contract by a federal, state or local tax authority.

AF. INTELLECTUAL PROPERTY: All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, trademarks, trade names, trade dress, service marks, names, software and other works and matters that Seller creates or develops in the course of Seller's performance of the services or Seller's design or development of the goods for Buyer, including all proprietary rights in the foregoing ("Intellectual Property") shall be Buyer's sole property, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in the Intellectual Property. All copyrightable works that Seller creates or develops in the course of Seller's performance of the services or Seller's design or development of the goods for shall be the sole property of Buyer, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in it and in all copyright rights in it. Seller shall sign and deliver to Buyer all assignments and other documents, and Seller shall take all other actions, that Buyer requests for the purpose of perfecting Buyer's ownership of and title to such Intellectual Property, Buyer Property, Special Tooling, and in any such copyrightable work. If the goods or their design are subject to any pre-existing patent rights or other proprietary rights that Seller holds, then Seller grants to Buyer an irrevocable, transferable, sublicensable, worldwide, non-exclusive, royalty-free license of such patent rights and other proprietary rights to enable Buyer to modify, repair, rebuild, manufacture, use and sell any or all of such designs and goods. This license is in addition to all licenses impliedly granted to Buyer as a purchaser of the goods. Seller shall not use Buyer's name or any trademark, trade name, service mark or trade dress that Buyer owns or that is licensed to Buyer or to any affiliate of Buyer, without Buyer's express, written consent, and Seller shall not sell to anyone other than Buyer any goods bearing any such trademark, trade name, service mark or trade dress.

AI. LAW: The laws of the Province of Ontario and the federal laws of Canada applicable therein shall govern the Contract, and the venue of any action brought hereunder may be laid in or transferred to the non-exclusive jurisdiction of the courts of the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Purchase Terms.

AK. ENGLISH LANGUAGE: The parties agree that these Terms of Purchase and all related documents be drafted and construed in English; les parties ont exigé que cet acte, ainsi que tous les documents s'y rapportant, soient rédigés en anglais.

March 2023

Access Covers, Grates and Frames

Access Hatches

Adjustment Riser

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Streetscapes and Urban Design

Supplier Terms and Conditions

Terms of Purchase

United States

Canada